Smoking and Compensation for Asbestos Exposure - Striking a Balance

It is hard to believe that 60 years ago doctors appeared in advertisements recommending a particular brand of cigarette, but the harmful effects of smoking on health were simply not known about back then. At the same time, thousands of people were exposed to harmful asbestos fibres at work. It is sometimes difficult, therefore, to assess the compensation payable when someone who was a smoker and has been unable to give up the habit has also suffered injury as a result of asbestos exposure.

A case of this kind recently came before the Court of Appeal. It concerned a 74-year-old dockworker who died from lung cancer who had started smoking when he was aged 14 in 1950. He had managed to cut down from 20 to 12 cigarettes a day later in life, but had continued to smoke against his doctor's advice.

There was no dispute that the man had been exposed to asbestos in the course of his work at the dockyard between 1966 and 1986. A post mortem found sufficient quantities of asbestos fibres in his lungs to double the risk of him contracting lung cancer. In those circumstances, his stepdaughter – acting on behalf of his estate – launched proceedings against the Department for Communities and Local Government, which has inherited the liabilities of the dockyard's operators.

The stepdaughter's claim was upheld and she was awarded in the region of £80,000 in damages. The sum payable was reduced by 30 per cent, however, to take account of the man's contributory negligence in continuing to smoke after he had been advised to stop.

The Department challenged that decision on the basis that the reduction should have been between 85 and 90 per cent. It contended that the danger to the man's health from smoking was probably between double and treble the risk posed by asbestos exposure.

In dismissing the appeal, however, the Court found that the judge in the lower court had been right not to focus exclusively on the respective contributions of smoking and asbestos to the man's death. In the Court's view, a commonsense approach was required, balancing the man's culpability against that of the dockyard's operators.

The Court noted that the man had begun smoking long before it was known that the habit posed a hazard to health. The judge had been correct in placing very considerable weight on the operators' breaches of duty in exposing him to asbestos and the fact that he had received no warnings about the potential dangers involved in handling asbestos and no protective equipment was provided, even though the risks attached to working with asbestos were well known by that time.